The Misleading Human Rights Watch and Amnesty International Reports on U.S. Drones

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University. He is a former Navy aviator and Topgun graduate.]

Human Rights Watch and Amnesty International released reports last week criticizing the use of drones in Yemen and Pakistan. Both reports have significant flaws in the way the factual information was presented and in how they characterize international law and US policy.

The HRW report is misleading from the outset. Entitled “Between a Drone and al Qaeda,” the report describes HRW’s investigation of six strikes in Yemen. Yet the strike that caused the vast majority of the civilian casualties described in the report occurred 4 years ago and was not even carried out by a drone. The cruise missile strike on al-Majalah has been covered extensively in the media for years, and was the result of Tomahawk cruise missiles fired from a US warship.

The most pernicious part of injecting the civilian casualties caused by this cruise missile strike into a report critical of drones and US targeted killing policy is the fact that this very strike had a profound impact on US policy four years ago. Daniel Klaidman’s book “Kill or Capture” details the Obama Administration’s reaction to the al-Majalah strike. The administration elevated the level of authority required to approve such strikes to the National Command Authority (direct oversight by the cabinet/joint chiefs/president). It also provided impetus for the shifting in weapons systems away from large weapons like cruise missiles that weigh 3,000 lbs. and carry a 1,000 lb. warhead to weapons like the Hellfire missile (the weapon most often employed by drones) that weighs only 100 lbs. and carries a 20 lb. warhead. The implication that the al-Majalah strike represents current US targeted killing policy is simply false

HRW’s report also claims that the administration’s policy on targeted killings as outlined in President Obama’s speech at the National Defense University in May embraces a law enforcement approach to the conflict with AQAP rather an armed conflict approach. It comes to that conclusion by cherry-picking a quote from that speech stating that the US only targets individuals who pose an “imminent threat to the American people,” which closely resembles a law enforcement standard. The report neglects to include the two words preceding that quote. President Obama actually said that the US targets terrorists that pose a “continuing and imminent threat to the American people.” This difference is significant.

In the context of the rest of President Obama’s address and those of other administration officials before him it is clear that the United States’ position is that it is involved in an armed conflict with al Qaeda and its associated forces. The President says as much later in the same speech: “the conflict with al Qaeda, like all armed conflicts, invites tragedy.” An earlier speech by John Brennan, then Assistant to the President for Homeland Security, was even clearer on this point: “the United States is in an armed conflict with al-Qa’ida, the Taliban, and associated forces.” Given this context, and other discussions of a standard of “elongated imminence” justifying the use of lethal force, the term “continuing and imminent threat” was clearly intended to support the continued use of armed conflict targeting rules against positively identified enemies. Yet Human Rights Watch attempts to maintain that the administration has recognized that the rules of law enforcement govern the conflict.

As a result, HRW’s complaints about several of the strikes that killed exclusively AQAP members hardly seem justified. Their claims that the United States may be obligated to capture rather than kill positively identified AQAP members has no basis in law. And the report’s second-guessing of the policy decision not to attempt to capture someone like Hamid al-Radmi who lived in a fortress compound surrounded by heavily armed bodyguards because some local villagers now claim that capture was feasible seems misguided at best. Given the enormous risks involved not only to American servicemen but also to local villagers in creating such a confrontation, the decision to use a drone strike that resulted in no civilian casualties instead of attempting a capture operation hardly seems objectionable on either legal or policy grounds.

Lastly, and perhaps most damaging to HRW’s credibility on this issue may be the statement by Letta Tayler, the author of the study. She began her discussion of the report with al Jazeera by saying that “drone strikes in some cases kill civilians while Al Qaeda in the Arabian Peninsula is careful to not kill civilians”. The implication that AQAP, an organization that has consistently targeted civilians on many occasions, is more scrupulous about avoiding civilian casualties than the United States is nothing short of delusional.

The Amnesty International study displays methodological flaws similar to those of the Stanford/NYU study of drone strikes in the FATA region that was published last year. Like the Stanford/NYU study, Amnesty received no input from anyone in the US government. It is not clear whether the authors of the Amnesty report received input from current or former members of the military, although some of the errors contained in the report would make it appear unlikely.

The problem with Amnesty’s willingness to uncritically credit information provided by their group of interviewees is best illustrated when the reader understands a little bit about how drones actually work. An excellent and comprehensive explanation of the clear factual errors about drones that are presented by the Amnesty report can be found here.

Amnesty accepts the assumption that its witnesses make that any airstrike conducted in the FATA regions of Pakistan is carried out by American drones. Yet, as this article indicates, the Pakistani Air Force (PAF) also frequently operates in the FATA region and according to its own reporting has struck thousands of targets in that region compared with less than 400 attributable to drones. The manned aircraft flown by the PAF like the F-16 and the Mirage III are much more easily seen and heard than solitary drones. Drones fly at high altitudes, always above 10,000 feet and in most cases above 20,000 feet, making them very difficult to see with the naked eye and usually inaudible to the human ear. Manned aircraft almost always fly in formation, and seldom operate alone. Drones are not capable of flying in formation and often operate alone. Lastly, manned aircraft like the Pakistani Air Force’s (PAF) F-16’s typically employ 500 lb. laser guided bombs or Maverick air-to-ground missiles that carry warheads of between 125 and 300 lbs. In contrast the primary weapon used by drones is the Hellfire missile which weighs approximately 100 lbs. and carries a 20 lb. warhead.

Yet many of the observations in the Amnesty report discuss numerous drones acting together including this description from one of the two strikes that feature prominently in the report (the killing of Mamana Bibi): “The drone planes were flying over our village all day and night, flying in pairs, sometimes three together.” This description appears to be of a formation of aircraft, which means that they must have been manned aircraft of the PAF, not US drones. Further, according to Amnesty this strike “left a big crater” in the field near where Mamana was working. A “big crater” and a formation of aircraft easily visible and audible from the ground is far more consistent with the detonation of a 200 lb. warhead from a bomb dropped by PAF manned aircraft than it is with the explosion of a 20 lb. warhead from a drone-launched Hellfire missile. But Amnesty does not even mention the possibility of PAF involvement as it directs its demands for disclosure exclusively to US authorities.

The Amnesty report also contains a section on the fear of drones. Parroting the Stanford/NYU report’s claim that the US drone program interferes with educational opportunities for girls and women because they fear to go outside, Amnesty’s report describes “frequent attacks by drones”. It also describes fear and sleeplessness caused by the “constant whine of drones overhead”. Again, Amnesty ignores the much larger presence of the Pakistani military in the region. Pakistani Army artillery frequently shells targets in FATA and the PAF has conducted thousands of strikes there while there have been less than 25 US drone strikes throughout the entire region this year. PAF aircraft, which since 2009 have included the Italian-built Falco drones that fly at lower altitudes than US drones, constantly patrol the region. Contrary to Amnesty’s assertions, the fear and disruption of daily life that it attributes to the US drone program in fact has far more to do with the continuing conflict between the Taliban and the Pakistani government.

Both reports have significant flaws that undermine their objectivity and overall credibility. This is particularly unfortunate because both organizations have historically done some excellent work in uncovering and reporting on human rights violations throughout the world. That standard of excellence is far from met here.

12 Responses

“Yet the strike that caused the vast majority of the civilian casualties described in the report occurred 4 years ago and was not even carried out by a drone.”
That’s because it’s a report on targeted killings, not a report on drones. HRW is explicitly clear about the distinction in their report and this critique is itself misleading.

“HRW’s report also claims that the administration’s policy on targeted killings as outlined in President Obama’s speech at the National Defense University in May embraces a law enforcement approach to the conflict with AQAP rather an armed conflict approach.”
Actually, HRW said that it “may be indicative” of such an approach.

Jaylemieux’s last point is particularly important. Here is the key quote from the executive summary:

These policies, which more closely reflect a law-enforcement model than a war model, provide that the United States will conduct strikes only against individuals who pose an “imminent threat to the American people”; when there is a “near-certainty that no civilians will be killed or injured” and when the target is present. President Obama also said the United States “does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute.”

First, HRW does not claim that the Obama administration has adopted a law-enforcement approach. It claims that the principles articulated in his speech “more closely reflect” a law-enforcement model than an IHL model. Second, and more importantly, HRW is correct and Lewis is not: zero tolerance for civilian casualties and preference for capture instead of kill do indeed “more closely reflect” the law-enforcement model.

HRW has gone out of its way to make this report be received as one about drones. From its dual release with the Amnesty report that is specifically about drones, to Tayler’s description of the al-Majalah strike as a “drone-assisted” strike during interviews about the report, HRW has made strong efforts to link this report to drones.
Even if you believe that the report is clearly addressed to US targeted killing policy writ large, the inclusion of the al-Majalah strike is still terribly misleading. It is widely known that that strike significantly changed US targeted killing policy.to include the strike in a criticism of that policy implies that the policy would support such strikes in the future. If Human Rights Watch is going to effectively criticize current US policy it first has to accurately describe that policy and its effects. By conciously choosing to include al-Majalah HRW does not do that.

11.09.2013
at 8:56 am EST Michael W. Lewis

Kevin,
What relevance does the fact that a US policy decision to restrict the way it uses force against AQAP more closely resembles law enforcement than war? There can be no question that the US maintains that the legal regime that applies is that of armed conflict. Are you claiming that because a policy decision looks more like law enforcement than war then that determines what legal regime applies?
A further misleading aspect of HRW’s report is that in their criticism of the US reliance a war paradigm they do not even mention the most obvious reason why that paradigm does apply to US drone strikes in Yemen. That is the unquestioned existence of an armed conflict in Yemen between AQAP/AAS and the Yemeni government. HRW acknowledges that the Yemeni government is deploying forces against AQAP, but they do not mention the hundreds of AQAP attacks and thousands of casualties inflicted on Yemeni government forces and Yemeni civilians. The “threshold of violence” in Yemen has undoubtedly been met and the Yemeni government has sought US assistance in that armed conflict. This is the clear basis for the applying the law of armed conflict in Yemen. You and HRW ignore that.

11.09.2013
at 12:20 pm EST Michael W. Lewis

Michael is correct to have also focused on the legal anaylsis sections of the AI and HRW reports, which use a law enforcement test (that may not even be customary international law) and the phrase “law enforcement” despite inapplicability of the “law enforcement” paradigm when targetings are justifiable under the laws of war and/or the law of self-defense. The U.S. has claimed lawfulness under the laws of war (which I disagree with regarding targetings outside of the theatre of the real war in Afghanistan and, de facto, parts of Pakistan or regarding targetings of persons who are DPH in connection with that international armed conflict who are located elsewhere) as well as the law of self-defense.
Both the AI and HRW reports use the wrong tests and criteria with respect to human rights. They do not focus adequately on the test regarding actual “power or effective control” documented, e.g., by the H.R. Comm. of the ICCPR in General Comment No. 31, the ICJ, etc.; and they do not adequately utilize the necessarily contextually attentive test in article 6 regarding “arbitrary” killings (and, therefore, non-arbitrary killings under the laws of war and/or the law of self-defense) — see, e.g., http://jurist.org/forum/2013/10/jordan-paust-drones-justification.php
I have supported AI and HRW for many years and note that they generally produce valuable works. However, if the wrong legal tests are used, a report can be easily criticized and there can be a deflation of the ngo’s authority.

11.09.2013
at 12:24 pm EST Jordan

Lewis:”Even if you believe that the report is clearly addressed to US targeted killing policy writ large…”

HRW, Subtitle of Report: “The Civilian Cost of US Targeted Killings in Yemen.”

Lewis: “The “threshold of violence” in Yemen has undoubtedly been met and the Yemeni government has sought US assistance in that armed conflict. This is the clear basis for the applying the law of armed conflict in Yemen. You and HRW ignore that.”

HRW: “The fighting between the Yemeni government and AQAP has since at least 2011 reached the level of an armed conflict, though pinpointing the start of that conflict is difficult. Whether there is a distinct armed conflict between the US and AQAP is less clear. The US government has acknowledged that it provides the Yemeni government with weapons, training and intelligence to confront AQAP, but it has not claimed to be a party alongside the Yemeni government to the Yemen-AQAP conflict.”

Lewis: “What relevance does the fact that a US policy decision to restrict the way it uses force against AQAP more closely resembles law enforcement than war? There can be no question that the US maintains that the legal regime that applies is that of armed conflict.”

HRW: “the standards articulated go beyond the requirement of the laws of war. This may be indicative of a shift within the US administration from an armed conflict approach to a law enforcement approach in operations against alleged terrorists. However, the administration has not referred to international human rights law with respect to these policies, and spoke in terms of meeting policy guidelines, not adhering to law.”

Kevin,
So you and HRW appear to admit (without admitting) that there is an armed conflict going on in Yemen. And that the US is aiding the Yemeni government in that conflict. Yet somehow (because the US has not publicly declared to the world that the US is actually a party to the conflict?) the US is not entitled to rely on the law of armed conflict in Yemen? That is the basis for claiming that this report is accurately reflects the law applicable in Yemen? And that the law of armed conflict may not apply?
I note that while you are eager to discredit my contention that HRW has inadequately described the applicable legal regime you are no longer defending their use of the al-Majalah strike to criticize current US targeted killing policy in Yemen. I am gratified by that. Likewise I note that you have not attempted to defend the Amnesty report at all. Glad to see that as well.

11.09.2013
at 8:51 pm EST Michael W. Lewis

I note that you have not contested my assertion (and Jaylemieux’s) that you have misrepresented HRW’s report in a number of important ways. Per your logic, that means you have conceded those misrepresentations. I’m glad to see it.

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